Carroll v The Queen
[2008] NSWCCA 300
•8 December 2008
NEW SOUTH WALES COURT OF CRIMINAL APPEAL
CITATION:
CARROLL v R [2008] NSWCCA 300
FILE NUMBER(S):
2007/2863
HEARING DATE(S):
8 December 2008
JUDGMENT DATE:
8 December 2008
EX TEMPORE DATE:
8 December 2008
PARTIES:
CARROLL, Thomas Neville Terrance (Applicant)
Crown (Respondent)
JUDGMENT OF:
Tobias JA James J Price J
LOWER COURT JURISDICTION:
District Court
LOWER COURT FILE NUMBER(S):
05/11/1176
LOWER COURT JUDICIAL OFFICER:
Freeman DCJ
LOWER COURT DATE OF DECISION:
9 March 2007
COUNSEL:
D H Patch (Applicant)
P M Miller (Respondent)
SOLICITORS:
John North, Solicitor (Applicant)
S Kavanagh, Solicitor for Public Prosecutions (Respondent)
CATCHWORDS:
CRIMINAL LAW — Sentencing — alleged lack of parity or appropriate disparity — no error
LEGISLATION CITED:
Crimes Act
Crimes (Sentencing Procedure) Act
CASES CITED:
GAS v R (2004) 217 CLR 198
R v Postiglione (1997) 189 CLR 295
TEXTS CITED:
DECISION:
Grant leave to appeal against sentence.
Dismiss the appeal against sentence.
JUDGMENT:
IN THE COURT OF
CRIMINAL APPEAL
2007/2863
TOBIAS JA
JAMES J
PRICE JMONDAY 8 DECEMBER 2008
CARROLL, Thomas Neville Terrance v R
Judgment
JAMES J: Thomas Neville Terrence Carroll applied for leave to appeal against a sentence imposed upon him in the District Court by his Honour Judge Freeman on 9 March 2007.
The applicant had been tried with an alleged co-offender, Frederick John Owens, on a charge of specially aggravated kidnapping (detention) of a woman who I will refer to as SP, and a charge of manslaughter of EP, a baby born to SP. The jury returned verdicts for both accused of not guilty of specially aggravated kidnapping but guilty of aggravating kidnapping and not guilty of the manslaughter of EP.
For the offence of aggravated kidnapping of SP Judge Freeman sentenced both Owens and the applicant to a non-parole period of four years with a balance of the term of two years. His Honour ordered that the sentences for both offenders commence from 21 January 2005, the date on which they had been arrested and taken into custody.
There was, however, a difference in the custodial history of Owens and the applicant. Owens had remained continuously in custody from 21 January 2005 to the date of sentencing.
The applicant was sentenced on the basis that he had been released on bail on 27 July 2006 and had remained at liberty on bail until 4 December 2006, when the jury delivered its verdicts. This Court has been informed that the full custodial history of the applicant between the date of arrest and 4 December 2006 was as follows: The applicant was in custody from 20 January 2005 to 5 May 2005. He was released on bail on 5 May 2005 and remained at liberty on bail until 29 May 2006. He was then in custody from 29 May 2006 until 27 July 2006 when he was released on bail, and he was at liberty on bail from 27 July 2006 until 4 December 2006.
The non-parole period of four years imposed on each offender will expire next month, whereupon each offender will be eligible to be released on parole, although, of course, there is no certainty that either will be immediately released.
The only ground of appeal relied on by the applicant is a ground based on the alleged lack of parity, or rather what is alleged to have been a lack of an appropriate degree of disparity, between the sentence passed on the applicant and the sentence passed on Owens.
This Court has already heard an application for leave to appeal against his sentence by the co-offender Owens. The only ground of appeal relied on by Owens was quite different from the only ground of appeal relied on by the present applicant and is quite irrelevant to the applicant's ground of appeal.
By coincidence the Bench which heard Owen's application for leave to appeal included Price J and myself, and I delivered the principal judgment. The Court granted Owens leave to appeal against sentence but dismissed his appeal. The parties to the present application were aware that Price J and I had sat on the appeal of the co-offender Owens and had no objection to us sitting on the present appeal.
The sentencing judge delivered one set of remarks on sentence for both the applicant and Owens. In his remarks on sentence the sentencing judge summarised the evidence of SP and it is apparent from later parts of his Honour's remarks that his Honour accepted the evidence he summarised for the purpose of sentencing both offenders. In summarising the evidence of SP his Honour said:-
“The evidence given by the victim, SP was to the following effect. She had fallen pregnant in about May 2004 so that she was expecting a baby in late January/early February 2005. She had been residing for six or eight weeks in the flat occupied by the offender Owens. The offender Carroll was also staying there, although he had his own flat a few streets away in Surry Hills.
On Sunday, 16 January 2005, SP and the offender Owens had gone to a nearby hotel where she had drunk lemon squash and he had played a poker machine. She had left and, after speaking to or visiting some acquaintances, had spent the night at the home of another friend known as Alfredo, that is Mr Ordonez. During that night she had noticed some discharge and had telephoned the Royal Hospital for Women. She had been reassured by that phone call that there was nothing to worry about unless she began to feel pains.
On the morning of 17 January 2005 SP said that she walked from Mr Ordonez’s home back to the premises of the offender Owens. The walk was five or ten minutes in length. About an hour before she arrived at the Owens’ home she had telephoned Owens to tell him she was calling in to collect some things because she was going to go to hospital as she had begun to feel some light contractions. On arrival at Owens’ place she said she was let into the flat though the front door by the offender Carroll. Then Owens began to berate her, demanding she return his wallet and money which he accused her of stealing from him in the hotel on the previous afternoon. She said that Owens began to hit her on the left side of the body, the legs and the face. She described how she cowered in a ball to protect herself while seated on the lounge in the flat. Carroll was at this stage in the background.
Convinced that she would not be allowed to leave the flat and go to hospital unless she produced some money, SP volunteered, she said, to telephone her mother. This she did with Carroll dialling the number for her and giving her the address of his flat as the address to which the mother should send a money order by express post. Owens stood over her while the phone call was made.
The victim’s mother, hearing her daughter’s pleas for monies and concerned for her wellbeing, notified the police but of course the only address to which she could direct them was Carroll’s flat which was not where her daughter was.
After this phone call Owens grabbed SP’s purse. Carroll went through the purse. From the contents of the purse Owens took the victim’s ATM access card. She gave him her PIN. He left the unit, telling Carroll not to allow the victim to leave. On his return, Owens again abused the victim and struck her about the face, body and legs.
According to SP, by this time her contractions were stronger and she was begging to go to hospital. Owens replied to the effect that he did not care. Other people, a man called Joe and a woman DB who later gave evidence, came to the unit and went. In fact, DB testified that she had gone to the unit to use heroin, had seen SP in a distressed state and, on leaving, had persuaded a man to call triple 0 for help and had then persevered in seeking assistance by using a taxi driver’s phone to call triple 0 herself.
Police ultimately arrived, summoned by these calls, and they were followed by an ambulance in which SP was conveyed to Royal Prince Alfred Hospital. At the hospital SP was diagnosed as suffering from a ruptured uterus. The baby was delivered by emergency Caesarean section. The baby, EP was judged to be about 31 weeks developed. She was revived but, having suffered brain damage as a result of the uterine rupture, she died on the following day, 18 January 2005. Her death had been the subject of the count of manslaughter which the Crown had argued was related to the rupture of the uterus, which had, in turn, been either the result of the blows struck by Owens and/or the refusal by both accused, as they were then, to allow SP access to medical assistance.”
In his remarks on sentence the sentencing judge explained the jury's verdicts of not guilty of manslaughter on the grounds that the blows inflicted by Owens on SP had not, as was alleged by the Crown, caused SP's uterus to rupture, thereby causing the death of EP. SP had a gynaecological history of three prior caesarean sections, and there had been conflicting expert medical opinion in the Crown case as to whether the blows inflicted by Owens had caused SP's uterus to rupture or whether SP's uterus could have ruptured, quite independently of any assault by Owens.
In his remarks on sentence the sentencing judge explained the verdicts of not guilty of specially aggravated detention but guilty of aggravated detention on the basis that the jury were satisfied beyond reasonable doubt that each accused had detained SP with the intent of obtaining an advantage (kidnapping simpliciter under s 86(1) of the Crimes Act); that the jury were satisfied beyond reasonable doubt that each accused had been in the company of another person, that is the other accused, so that each accused was guilty of aggravated kidnapping (s 86(2) of the Crimes Act) but the jury were not satisfied beyond reasonable doubt that actual bodily harm had been occasioned to the victim. Under s 86(3) of the Crimes Act a person cannot be found guilty of specially aggravated kidnapping, unless both the circumstances of aggravation of being in the company of another person and occasioning actual bodily harm are present.
The sentencing judge concluded in his remarks on sentence that the verdicts of not guilty returned by the jury did not necessarily mean that the jury had rejected or had not accepted beyond reasonable doubt SP's evidence that she had been assaulted, and his Honour said that he “had no difficulty” in accepting SP's evidence that she was in fact struck in the manner alleged by Owens, with the tacit support of Carroll. However, his Honour did find that it would be inconsistent with the jury's verdicts of not guilty of manslaughter and not guilty of specially aggravated kidnapping to find that the final assault on SP had occasioned any actual bodily harm to her.
The sentencing judge found that the offence of aggravated kidnapping was objectively serious. SP had been detained for more than an hour. She was detained at a time when she was in labour and actual physical violence had been inflicted, albeit not causing actual bodily harm.
His Honour referred in his remarks to the subjective circumstances of Owens. At the time of sentencing Owens was 52 years old. He had a long history of very serious crimes and very long terms of imprisonment. There had in fact been a reduction in his criminal conduct in the years leading up to the present offence, and he was on unconditional liberty at the time of committing the present offence.
At the time of sentencing Carroll was 57 years old. He had a number of criminal convictions, including a conviction in 1978 for malicious wounding with intent to do grievous bodily harm, for which he had been sentenced to imprisonment for seven years. However, his Honour in his remarks said, “his record is nowhere near as long nor as serious as that of Owens”. His Honour added, “but his involvement in this offence is significantly aggravated by the fact that he was subject to s 9 bonds for three offences, namely goods in custody, possession of a prohibited drug and cultivation of a prohibited plant”. These bonds, each for three years, had been imposed only four months before the offence. His Honour noted that the applicant had been diagnosed as having a bipolar disorder, which could be controlled by medication. However, in the past the applicant had been resistant to taking medication.
His Honour stated that while he did not regard the prospects of either of the offenders of being rehabilitated as being good, each would need close and prolonged supervision on his release, and in the case of both offenders his Honour found special circumstances within s 44(2) of the Crimes (Sentencing Procedure) Act.
In his remarks his Honour considered the question of parity. His Honour said:-
“There is of course the difficult question of parity between them. There is no doubt that Owens was the dominant figure. He was the one whose money was missing. He initiated the detention of SP with the intention of recovering that money. He was the one who, I am satisfied beyond reasonable doubt, struck SP a number of times. He has quite distinctly the worse record, although of course he is not to be punished again for his past. That record bears on his prospects of rehabilitation.
On the other hand, Carroll has the seriously aggravating element of being on a bond or bonds at the time, although his role was physically far the lesser. He did, however, involve himself in threatening manoeuvres as perceived by SP, rummaging through her purse, directing the delivery of the money, acting as her custodian during Owens’ absence. His responsibility therefore cannot be much less.
………..
I think the difference between the two offenders is not great. I would impose sentences slightly but not markedly different.
………..
The situation in relation to parity, in an attempt to achieve largely equal rights, is made even a little more complicated by their different custodial histories. Owens has been in custody since his arrest, that is from 21 January 2005 to date. His sentence should commence as from 21 January 2005. Carroll was likewise taken into custody from 21 January 2005 but he was admitted to bail on 27 July 2006. He has been, once again, in custody since the jury’s verdict on 4 December 2006, thus he has been in prison a little over four months less than Owens.
I propose to recognise the small difference between them in a practical manner only, that is to sentence them in identical terms but to acknowledge that that will have the practical effect of ensuring that Carroll will serve, overall, a little over four months less than Owens.”
The only ground of appeal against sentence relied on by the applicant is “the applicant's sentence relative to that of the co-offender Owens is too severe. The applicant therefore has a justifiable sense of grievance and the principles as to parity should apply so as to result in a reduced sentence”.
The sentences imposed on the applicant and the co-offender were nominally the same, and the ground of appeal alleged, not a lack of parity between the sentence imposed on the applicant and the sentence imposed on the co-offender, but what was alleged to have been a lack of proper disparity or proportionality between the two sentences.
In a passage in their joint judgment in R vPostiglione (1997) 189 CLR 295, the whole or parts of which have often been quoted, Dawson J and Gaudron J said at 301-302:-
“The parity principle upon which the argument in this Court was mainly based is an aspect of equal justice. Equal justice requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them. In the case of co-offenders, different sentences may reflect different degrees of culpability or their different circumstances. If so, the notion of equal justice is not violated. On some occasions, different sentences may indicate that one or other of them is infected with error. Ordinarily, correction of the error will result in there being a due proportion between the sentences and there will then be equal justice. However, the parity principle, as identified and expounded in Lowe v The Queen, recognises that equal justice requires that, as between co-offenders, there should not be a marked disparity which gives rise to “a justifiable sense of grievance”. If there is, the sentence in issue should be reduced, notwithstanding that it is otherwise appropriate and within the permissible range of sentencing options.
Discrepancy or disparity is not simply a question of the imposition of different sentences for the same offence. Rather, it is a question of due proportion between those sentences, that being a matter to be determined having regard to the different circumstances of the co-offenders in question and their different degrees of criminality.”
It was submitted on behalf of the applicant that the sentencing judge had erred in finding that “the difference between the two offenders is not great.” In support of this submission it was pointed out that his Honour had found that it was Owens who had believed that his money had been taken by SP; it was Owens who had initiated or instigated the detention of SP with the intention of recovering the money; and it was Owens who had struck SP a number of times. His Honour found that Owens had been the dominant figure and that the applicant's role had been “physically far lesser”. Carroll had not himself struck SP and he had not even been present in the same room during Owens’ final assault on SP. It was submitted that, as far as subjective circumstances were concerned, Owens had by far the worse criminal record.
It was submitted that his Honour had given too much weight to the point of distinction between the two offenders which was to the disadvantage of the applicant, that Owens had been on unconditional liberty at the time of committing the offence, whereas the applicant had, as his Honour expressed it, “the seriously aggravating element of being subject to bonds at the time of committing the offence”. It was submitted that the offences in respect of which bonds had been entered into were comparatively minor offences.
It might well have been open to his Honour to impose the sentences he did on the applicant and the co-offender Owens, on the basis of the information about the custodial history of the applicant which his Honour set out in his remarks on sentence. Carroll did directly participate in the commission of the offence in the respects found by his Honour in his remarks on sentence. With regard to most of Owens conduct, the applicant was a principal in the second degree, being present, being aware of Owens conduct and being ready to assist Owens. In GAS v R (2004) 217 CLR 198 at 209 (23) the High Court remarked that, “it is not a universal principle that the culpability of an aider and abetter is less than that of the principal offender”. His Honour was entitled to find that it was a seriously aggravating circumstance that the applicant had been on conditional liberty on three bonds at the time of committing the offences, whereas Owens had been on unconditional liberty. His Honour did distinguish between the applicant and the co-offender by imposing a sentence on the applicant which in practical terms, when regard was had to the period for which his Honour stated that the applicant had been at liberty on bail, was over four months less than the sentence passed on the co-offender.
The information provided to this Court indicates that between the time of the offence and the time of sentencing the applicant had been at liberty on bail, not for a period of just over four months, but for a period exceeding one year four months. Whatever strength the ground of appeal based on alleged lack of appropriate disparity might have had, on the basis of the information about the applicant’s pre-sentence custody on which his Honour sentenced, that strength is dissipated by the information now provided to this Court.
I would reject the only ground of appeal against sentence. I would grant leave to appeal against sentence, but I would dismiss the appeal against sentence.
TOBIAS JA: I agree.
PRICE J: I agree with James J.
TOBIAS JA: The order of the Court will be as proposed by James J.
**********
LAST UPDATED:
11 December 2008
0
2
2